an action in a federal court for contribution against a non-resident stockholder, notwithstanding the fact that the principal liability could not have been enforced anywhere except in that state.

3. SAME-RELATIVE LIABILITY.

Where the bill does not show but that the stockholders were all living and solvent at the several times of payment, nor proceed at all against the defendant for the inability of any of them, defendant's liability to each will be in the same proportion to the amount paid as his stock bears to the whole stock.

4. SAME-INTEREST..

Where a stockholder is compelled to pay a corporate debt for which another stockholder is equally liable it is the same in effect as having his proportion of the amount detained by him, and in an action for contribution interest is recoverable. 5. SAME-SURVIVORSHIP.

In an action by several stockholders, who have been severally compelled to pay corporate debts, against a non-resident stockholder, the claims of orators who have died pending suit will not survive to the others.

WHEELER, J. The several orators and the defendant were, respectively, stockholders in the Illinois & St. Louis Bridge Company, a corporation of the states of Illinois and Missouri, the capital stock of which was $4,000,000, divided into shares of $100 each. All of these stockholders had ratable proportions of some stock, called "bonus," on which the first 40 per cent. was not, and by the terms on which it was distributed by the company was not to be, paid; and, when the last 60 per cent. on all the stock was paid, the stockholders received in return mortgage bonds of the company in amounts equal to the payments. By the laws of Missouri, as held by the courts of that state through to the highest, creditors of the corporation upon a return of nulla bona on an execution against it could have further execution against the several shareholders to the amount of that 40 and 60 per cent., and thus all the stockholders were there ratably liable in that manner to that extent for the debts of the company. Skrainka v. Allen, 7 Mo. App. 435, 76 Mo. 384. The orators severally paid considerable sums on the debts of the company under compulsion of such proceedings, and this bill is brought for contribution from the defendant towards the sums so paid.

Objection is made that the bill is multifarious, because the claim of each orator is distinct from that of the other. In Brown v. Safe-Deposit Co., 128 U. S. 403, 9 Sup. Ct. Rep. 127, the court said:

"To support the objection of multifariousness because the bill contains different causes of suit against the same person two things must concur: First, the grounds of suit must be different; second, each ground must be sufficient, as stated, to sustain a bill."

In this case the grounds of the suit are not different, but the same; and, as there, the objection "raises no question save the technical one. of an undue uniting of demands," and, as there, the demands grow out of a subject in which all the parties had a common interest. The objection must therefore, as there, be overruled. That the law of Missouri warranted the holding of the stockholders liable for the debts of the corporation on account of the non-payment of the 40 per cent. of the bonus

stock, and of the return of 60 per cent. in bonds on payment of that amount of the whole of the stock, has been questioned in a suit upon. the direct liability. Christensen v. Eno, 106 N. Y. 97, 12 N. E. Rep. 648. That question is followed and strenuously made in behalf of the defendant here. But whether other courts or this court would, on general principles of construction, come to the same conclusion upon the statute of Missouri as that to which the courts of that state have come, is not material. The parties became stockholders in a corporation of Missouri, subject to the laws of that state, as construed by the courts of the state. Rev. St. U. S. § 721; Fairfield v. County of Gallatin, 100 U. S. 47. These laws, so construed, were rules of property in respect to the rights and liabilities between the corporation and the stockholders there and everywhere. Chase v. Curtis, 113 U. S. 452, 5 Sup. Ct. Rep. 554. By them the orators and the defendant became liable ratably in proportion to their stock for debts of the corporation, and were co-sureties to the extent of the liability. The orators have been compelled to pay the defendant's share for him, and, upon common principles of equity, seem to have become entitled to have of him what they have paid for him. Deering v. Earl of Winchelsea, 2 Bos. & P. 270. That the liability could not be enforced here, nor anywhere but there, and he could not be reached there, does not affect the operation of these principles. The right to have contribution from him arose on payment of his share, and could be enforced wherever jurisdiction could be had. Aldrich v. Aldrich, 56 Vt. 324. The right of the orators to contribution is questioned because, as said, they were directors, and created the debts against law. This reason fails for want of proof of the fact. The debts appear to have been created for building the bridge of the corporation, and are not shown to have been unlawful.

The bill does not show but that the stockholders were all living and solvent at the several times of payment, nor proceed at all against the defendant for the inability of any of them. The orators are therefore to be understood as having paid for him his share of the several debts, and not his share of any shares of others not able to pay. The right that accrued to the orators was to have of him what they had so respectively paid for him. This right accrued there, and the orators have come here, where jurisdiction can be had, to enforce it. That the other stockholders are not to be found within this jurisdiction furnishes no reason for enforcing their liabilities as if his, nor for enlarging his. The defendant's share of what each paid was the same as his stock was of the whole stock. The orators have received something of another stockholder, but not on account of the defendant, nor more, so far as appears, than that stockholder's share. The sum so received does not lessen or vary the defendant's liability.

A question is made about interest. The orators were compelled to pay money for the defendant which he ought to have paid, although he may not actually have known of the circumstances requiring the payment at the time. Interest is recoverable generally upon advances of money, (Liotard v. Graves, 3 Caines, 226; Sedg. Dam. 380;) and upon money

paid by a surety without demand, (Ilsley v. Jewett, 2 Metc., Mass., 168.) Being compelled to pay money for the defendant was the same, in effect, as having it detained by him, for which interest is recoverable.

Ekins

v. East India Co., 1 P. Wms. 395; Wood v. Robbins, 11 Mass. 504. Upon these principles, interest appears to be chargeable upon the respective amounts paid for the defendant from the time of payment.

The orator Allen has died, and the suit has not been revived in favor of his personal representatives. The defendant has died, and the suit has been revived against his executors. The amount to be paid by the executors to each orator is capable of computation from the pleadings and evidence. To the orator Lionberger it is $77.33; to the orator Jackson, $67.11; to the orator Knapp, $66.54; and to the orator Greeley, $19.83. As the payments of the orators were several, except that by the two Knapps, who were partners, the claims of those who have died have not survived to the others; and, as the amount recovered is less than $500, costs to the orators are expressly prohibited. Rev. St. U. S. § 968. Let a decree be entered that the defendant's executors forthwith pay to the orator Lionberger, $77.33; to the orator Jackson, $67.11; to the orator Knapp, $66.54; and to the orator Greeley, $19.83, without costs.

CRAIG V. MOUNT CARBON Co., Limited.

(Circuit Court, D. West Virginia. December 3, 1890.)

1. RAILROAD COMPANIES-NEGLIGENCE-INJURIES TO TRESPASSER ON TRACK. A person riding on a railroad velocipede over and on the track of a railroad company, without having obtained its consent for that purpose, is a trespasser, and, in the event of injury resulting therefrom, no action can be maintained against the company, unless willful negligence on its part, which could have been avoided, is

proven.

2. SAME-LICENSE TO USE TRACK.

No action can be maintained in such case where permission was asked for and given by said company to so use their track at the plaintiff's own risk, unless the defendant was guilty of willful negligence.

3. SAME.

Mere acquiescence on the part of the company to such use of their track gives no right, but in such case the person so using is a trespasser, and no action can be maintained, unless the defendant was guilty of willful negligence.

(Syllabus by the Court.)

At Law.

This is an action to recover damages for the death of plaintiff's husband, alleged to have been caused by the negligence of the defendant company. On the trial of the case evidence was introduced on the part of the plaintiff tending to prove that the defendant is the owner of coal mines in Fayette county, W. Va.; that said mincs are located on Armstrong creek, about five miles from where said creek empties into Kanawha river; that for the purpose of transporting coal to said river, and to the Chesapeake & Ohio Railway, defendant had built a railroad pass

ing up said creek from said river to the coal mines of defendant; that along the line of said road it was thickly settled, and, the county road being in the creek much of the way, pedestrians frequently walked on the railroad track; that said railroad was a steep grade, and near the upper end of same defendant had made a safety switch or cut-off; that at the time of the killing of the decedent, C., the said switch was closed, and the engines and cars of the company were above the same; that when said switch was open, if any car or engine got away from those having it in charge, it was thrown off or derailed, and could not go down said railroad track; that at the time of the killing aforesaid a loaded box-car, the property of the Newport News & Mississippi Valley Railroad Company, then in the custody of defendant, was standing on the track above. said safety switch; that said car had but one brake; that the chain attached to said brake had a defective link, apparent on inspection by one competent for the purpose; that decedent was a miner in the employ of defendant, but had nothing to do with operating defendant's railroad; that about the last of November, 1888, decedent and one V., his son-inlaw, bought a railroad velocipede, on which they rode every morning, when the track was not wet or frozen, from their home, about two miles below the mines where they worked, to the mines of defendant at upper end of the track, where they would take said velocipede off the track, near office of defendant, lock it, and leave it until evening, when they would put the velocipede again on the track, and ride back to their homes; that this was done continuously, morning and night, for about a month before the accident; that on the evening of the 15th of January, 1889, when it was nearly dark, and the engines and cars of defendant were at the upper end of the railroad, and above the safety switch, they put the velocipede on the track, and started down the same; that just after they started servants of defendant attempted to shift said boxcar lower down the track from where it stood; that one Z., a brakeman in the employment of the defendant company, as such, was at the brake of said car; that it started, and, its speed becoming too much accelerated, he attempted to stop it by turning the brake; that thereupon, by reason of said defective chain, it broke, leaving him powerless to manage the car; that, being thus powerless, he jumped off; that the safety switch was closed, and the car ran down the main track past the switch with accelerated speed; that, near the home of the decedent it had reached the great speed of about 80 miles an hour, and ran over said velocipede, killing both decedent and his son-in-law, V., who were thereon; that this use of the track had been made openly, said velocipede being taken off below defendant's office, and in defendant's yard, but not in sight of the general manager of defendant, unless he was in that neighborhood; that no objection was ever made by said general manager, in charge of defendant's works, nor by any officer of said company, to said decedent so riding on said track, so far as witnesses knew, during the time of so using.

Evidence was introduced by defendant tending to prove that the safety switch was placed there to protect the property of the company alone, v.45F.no.7-29

and was left open only when the engine of the company was below the switch; that if a car was derailed on the switch, it wrecked the car; that the defect in the chain was not apparent on inspection; that the parties who first brought the velocipede to the railroad asked permission to so use said velocipede on said road of the general manager, who refused said permission, but said they might use it at their own risk, and that it was dangerous; that they did use it for a time, and sold it to one S., and told him that the general manager had refused them permission to run it, except at their own risk; that said S., while negotiating for the purchase, and before completing same, asked like permission of the general manager, which was refused in like manner, except at said S.'s own risk; that S. sold said velocipede to said C. and V. in November or December, 1888, and told them at the time they purchased that the general manager had refused permission to him to run it except at his own risk; that some time after C. and V. purchased the velocipede, and while running the same on said track, as aforesaid, they told different persons that . they had no permission from the general manager to do so, and told one witness, G., that they were running it at their own risk; that, on the evening the accident occurred, they narrowly escaped being run over by the engine of defendant company after they had gotten on their velocipede to run down home, and were then warned by said G., an engineer in defendant company's employ, against the danger of so using same, and again said they were so using it at their own risk; that before they purchased said velocipede it was left by its former owners at different parts about defendant's property, and frequently at the same place where C. and V. left it; that it was used by said C. and V. early in the morning and late in the evening, and that the general manager of the defendant company did not know they had bought the velocipede, or were using it, until after their death; that the heaviest grade on said defendant's railroad was at the upper end, and was 1 95-100 of a foot in 100 feet; that said box-car was brought by the Chesapeake & Ohio Railway Co., loaded with corn for defendant company, and was received by defendant company, and taken to the mines, a day or two before the accident; that it became necessary to remove it from the place where it had been standing, in order to enable the defendant's locomotive to go into the enginehouse for the night, and after the car was moved to another track, and while the brakeman was trying to stop it on the other track, the brake chain broke, and the brakeman then could not stop the car. The plaintiff then introduced evidence tending to contradict the witness G. Plaintiff asked the court to instruct the jury as follows:

"(1) The court instructs the jury that if they believe from the evidence that the direct cause of the death of the decedent, Charles Craig, was due to the negligence of the defendant, in the absence of contributory negligence, they must find for the plaintiff, even though they may believe the defendant was a trespasser, and unlawfully upon the defendant's track.

"(2) The court instructs the jury that if they believe from the evidence that the direct cause of the decedent, Craig's, death was the negligence of the defendant or its servants, in the absence of contributory negligence on his part, then they shall find for the plaintiff, though they may further believe that the